One of the most distinctive features of the ICSID arbitration system is its annulment mechanism. ICSID arbitral awards are binding on the disputing parties and are not subject to any remedies, except those provided for in the Convention.1 This is a testament to the delocalized and self-contained nature of ICSID arbitration system, which is autonomous from any domestic law.2
II. The ad hoc Committee: composition and appointment
Upon registration of the application for annulment, the Chairman of the ICSID Administrative Council appoints a three-member ad hoc Committee from the ICSID Panel of Arbitrators in accordance with Article 52(3) of the ICSID Convention.4
While the ICSID Convention imposes no obligation to consult the parties about the ad hoc Committee appointment, it is ICSID’s practice to inform the parties of the proposed appointees and to submit their curricula vitae for the parties’ comments.5 That being said, with rare exception,6 the ad hoc Committees do not usually acknowledge this consultation process in their decisions.
III. Challenges of ad hoc Committee members
The ICSID Convention and ICSID Arbitration Rules do not explicitly provide for a possibility for the parties to challenge ad hoc Committee members. Article 52(4) of the ICSID Convention does not list Articles 57 and 58 (dealing with disqualification of arbitral tribunal members)7 as applicable to the annulment proceedings,8 while the ICSID Arbitration Rule 53 only generally states that the Rules apply mutatis mutandis to the annulment proceedings.9 This, however, was sufficient for the few ad hoc Committees that have faced a request for disqualification of their members to assume jurisdiction to rule on such a request.10
IV. Nature and scope of the ICSID annulment review
An ICSID arbitral award can be annulled by an ad hoc Committee on one of the following grounds:
Schreuer, Ch., Malintoppi, L., Reinisch, A., Sinclair, A., The ICSID Convention: A Commentary, 2nd ed., 2009, pp. 890-1095.
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Le Cannu, P-J., Foundation and Innovation: The Participation of African States in the ICSID Dispute Resolution System, ICSID Review-Foreign Investment Law Journal, 2018, pp. 456–500.
Hyder Ali, A., de Gramont, A., Mellske, R. and Wessel J., Chapter 9: The Award: Form, Effect, and Enforceability, in The International Arbitration Rulebook: A Guide to Arbitral Regimes, 2019, pp. 537-590.
Tanzi, A.M., On Judicial Autonomy and the Autonomy of the Parties in International Adjudication, with Special Regard to Investment Arbitration and ICSID Annulment Proceedings, Leiden Journal of International Law, 2020, pp. 57-75.
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